10/00 - SAELZER V. ADVANCED GROUP [AC] S085736 IN THE SUPREME COURT OF CALIFORNIA MARIANNE SAELZLER, Plaintiff and Respondent, vs. ADVANCED GROUP 400, et al., Defendants and Petitioners. AFTER ADECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT,DIVISION SEVEN CASE NO. B125896 REQUEST FOR LEAVE TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANTS AND PETITIONERS ADVANCED GROUP 400, ET AL. HORVITZ & LEVY LLP FREDERIC D. COHEN (STATE BAR NO. 56755) ANDREA M. GAUTHIER (STATE BAR NO. 158955) ORLY DEGANI (STATE BAR NO. 177741) 15760 VENTURA BOULEVARD, 18TH FLOOR ENCINO,CALIFORNIA 91436 (818) 995-0800 • FAX (818) 995-3157 ATTORNEYS FOR AMICI CURIAE THE UNIVERSITY OF SOUTHERN CALIFORNIA, THE UNIVERSITY OF CALIFORNIA, CALIFORNIA STATE UNIVERSITY, THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, CALIFORNIA INSTITUTE OF TECHNOLOGY, LOMA LINDA UNIVERSITY, PEPPERDINE UNIVERSITY, SUTTER HEALTH, STATE FARM GENERAL INSURANCE COMPANY, TRUCK INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, CIVIC PROPERTY AND CASUALTY COMPANY, EXACT PROPERTY
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10/00 - SAELZER V. ADVANCED GROUP [AC]
S085736IN THE
SUPREME COURT OF CALIFORNIA
MARIANNE SAELZLER,
Plaintiff and Respondent,
vs.
ADVANCED GROUP 400, et al.,
Defendants and Petitioners.
AFTER A DECISION BY THE COURT OF APPEALSECOND APPELLATE DISTRICT, DIVISION SEVEN
CASE NO. B125896
REQUEST FOR LEAVE TO FILE AMICI CURIAE BRIEFAND AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANTS AND
PETITIONERS ADVANCED GROUP 400, ET AL.
HORVITZ & LEVY LLPFREDERIC D. COHEN (STATE BAR NO. 56755)
ANDREA M. GAUTHIER (STATE BAR NO. 158955)ORLY DEGANI (STATE BAR NO. 177741)15760 VENTURA BOULEVARD, 18TH FLOOR
ENCINO, CALIFORNIA 91436(818) 995-0800 • FAX (818) 995-3157
ATTORNEYS FOR AMICI CURIAETHE UNIVERSITY OF SOUTHERN CALIFORNIA, THE UNIVERSITY OF
CALIFORNIA, CALIFORNIA STATE UNIVERSITY, THE BOARD OF TRUSTEES OFTHE LELAND STANFORD JUNIOR UNIVERSITY, CALIFORNIA INSTITUTE OF
TECHNOLOGY, LOMA LINDA UNIVERSITY, PEPPERDINE UNIVERSITY, SUTTERHEALTH, STATE FARM GENERAL INSURANCE COMPANY, TRUCK INSURANCE
EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCECOMPANY, CIVIC PROPERTY AND CASUALTY COMPANY, EXACT PROPERTY
AND CASUALTY COMPANY, AND NEIGHBORHOOD SPIRIT PROPERTY ANDCASUALTY COMPANY
I. SAELZLER’S NOVEL APPROACH TO PROVINGCAUSATION CONFLICTS WITH EXISTING CALIFORNIAAUTHORITY, INCLUDING PRIOR DECISIONS OF THISCOURT, AND WITH CASE LAW FROM OTHERJURISDICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Saelzler Directly Conflicts with Every Other Decision bythe California Courts of Appeal that Has Addressed theIssue of Causation in the Context of Landowner Liabilityfor Third-Party Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Saelzler Conflicts with This Court’s Recent Decision inSharon P. v. Arman, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Saelzler Conflicts with Authority From OtherJurisdictions Concerning Proof of Causation in theLandowner Liability Context . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. The “Common Sense” Premise that Security GenerallyReduces Crime Is Insufficient, by Itself, to Satisfy aPlaintiff’s Burden of Proof on the Issue of Causation . . . . . 12
B. An Expert’s Unsupported Hindsight Opinion About theDeterrent Effect of Recommended Security MeasuresCannot Create a Triable Issue of Fact on Causation . . . . . . 16
A1
C. There Is No Legitimate Basis For Shifting to DefendantLandowners the Burden to Disprove Causation . . . . . . . . . 17
D. Public Policy Demands that Plaintiffs in PremisesLiability Actions Based on Third-Party CrimeAffirmatively Demonstrate Causation . . . . . . . . . . . . . . . . . 23
REQUEST BY THE UNIVERSITY OF SOUTHERNCALIFORNIA, THE UNIVERSITY OF CALIFORNIA,CALIFORNIA STATE UNIVERSITY, THE BOARD OFTRUSTEES OF THE LELAND STANFORD JUNIORU N I V E R S I T Y ( S T A N FORD UNIVERSIT Y ) ,CALIFORNIA INSTITUTE OF TECHNOLOGY, LOMALINDA UNIVERSITY, PEPPERDINE UNIVERSITY,SUTTER HEALTH, STATE FARM GENERALINSURANCE COMPANY, TRUCK INSURANCEEXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, CIVIC PROPERTYAND CASUALTY COMPANY, EXACT PROPERTY ANDCASUALTY COMPANY, AND NEIGHBORHOODSPIRIT PROPERTY AND CASUALTY COMPANY, FORLEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORTOF DEFENDANTS AND PETITIONERS
TO THE HONORABLE CHIEF JUSTICE AND THE HONORABLE
ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF
CALIFORNIA:
Pursuant to California Rules of Court, rule 14(b), the University of
Southern California, the University of California, California State University,
the Board of Trustees of the Leland Stanford Junior University (Stanford
University), California Institute of Technology, Loma Linda University, and
Pepperdine University (collectively, “the Universities”); Sutter Health, a
nonprofit organization of hospitals; and State Farm General Insurance
Company, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century
1/ This application and proposed brief are timely filed. On September 7,2000, this Court extended the time for filing the application and proposed briefto and including October 10, 2000.
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Insurance Company, Civic Property and Casualty Company, Exact Property
and Casualty Company, and Neighborhood Spirit Property and Casualty
Company (collectively, “the Insurance Carriers”) respectfully request
permission to file the attached brief as amici curiae in support of defendants
and petitioners Advanced Group 400, et al.1/
The University of Southern California (USC) is a private university
with a diverse student body, located near downtown Los Angeles. Its two
campuses, which include administrative facilities, classrooms, laboratories,
libraries, dormatories, hospital facilities, athletic fields, parking garages, and
park-like open spaces, are located on 186 acres of property. Over 28,000
students and countless members of the public have constant access to USC’s
facilities from early in the morning until late at night. USC was the defendant
in one of the leading landowner liability cases, Nola M. v. University of
Southern California (1993) 16 Cal.App.4th 421, the validity of which is at
issue here.
The University of California (UC) is a public university system that
includes nine university campuses located throughout California, in or near
Santa Cruz, San Francisco, Davis, Berkeley, Santa Barbara, Los Angeles,
Irvine, Riverside and San Diego. Approximately 178,410 students attend the
nine UC campuses, and approximately 150,640 employees work on the
campuses. The campuses contain a total of approximately 5,200 buildings,
most of which are regularly accessible to all UC’s students and employees, as
well as to the general public. In particular, the campus libraries are open to
the public, and members of the public regularly attend athletic events at the
many sporting facilities on the campuses. In addition, five of the UC
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campuses (San Francisco, Davis, Irvine, Los Angeles and San Diego) have
medical schools with hospitals that service the general public.
California State University (Cal State) is a public university system
composed of 23 campuses located throughout California. The 23 Cal State
campuses occupy a total of 17,819 acres of property consisting of classrooms,
verdict for plaintiff because of “guessing game [required] to determine
2/ See also Blumenthal v. Cairo Hotel Corp. (D.C. 1969) 256 A.2d 400;Post Properties, Inc. v. Doe (Ga.Ct.App. 1997) 495 S.E.2d 573; Stephens v.Clairmont Center, Inc. (Ga.Ct.App. 1998) 498 S.E.2d 307; N.W. v.Amalgamated Trust & Savings Bank (Ill.App.Ct. 1990) 554 N.E.2d 629; Gantv. Flint-Goodridge Hospital of Dillard University (La.Ct.App. 1978) 359So.2d 279; Rullman v. Fisher (Minn.Ct.App. 1985) 371 N.W.2d 588; Vittenglv. Fox (Mo.Ct.App. 1998) 967 S.W.2d 269; Sakhai v. 411 East 57th StreetCorp. (N.Y.App.Div. 2000) 707 N.Y.S.2d 630; Dawson v. New York CityHousing Authority (N.Y.App.Div. 1994) 610 N.Y.S.2d 28, Pagan v. HamptonHouses, Inc. (N.Y.App.Div. 1992) 589 N.Y.S.2d 471; Clarke v. J.R.D.Management Corp. (N.Y.Civ.Ct. 1983) 461 N.Y.S.2d 168; Kistoo v. City ofNew York (N.Y.App.Div. 1993) 600 N.Y.S.2d 693; Hall v. Fraknoi(N.Y.Civ.Ct. 1972) 330 N.Y.S.2d 637; Carmichael v. Colonial SquareApartments (Ohio Ct.App. 1987) 528 N.E.2d 585; East Texas Theatres, Inc.v. Rutledge (Tex.Ct.App. 1970) 453 S.W.2d 466.
A15
whether some unknown thug of unknowable character and mentality would
have been deterred if the owner had furnished some or some additional
policemen”]; Schwartz v. Niki Trading Corp. (N.Y.App.Div. 1995) 634
N.Y.S.2d 481, 481 [affirming summary judgment for defendant because
“plaintiffs failed to provide any evidence indicating that the person who
attacked plaintiff was an intruder or gained access to the building because of
any lapse in security”].)2/
Moreover, like California in the Nola M. line of cases, other
jurisdictions reject attempts by plaintiffs to satisfy the burden of establishing
causation by presenting security experts who opine, without reliance on any
specific factual support, that additional security measures would have
prevented the crime. (See, e.g. Wright v. New York City Housing Authority
(N.Y.App.Div. 1995) 624 N.Y.S.2d 144 [“affidavit of plaintiff’s expert stating
that the murder would not have occurred if the elevators were working
properly and the stairwells had been properly illuminated consists of bald
conclusions calculated to show fault but is devoid of any evidentiary showing
based on knowledge of the facts”]; Mkrtchyan v. 61st Woodside Associates
3/ Although our search has revealed a very small number of out-of-statecases that seem to apply a more liberal standard of causation than the Nola M.line of cases in premises liability actions based on third party crime (see e.g.,Orlando Executive Park, Inc. v. P.D.R. (Fla.Dist.Ct.App. 1981) 402 So.2d442), no case goes so far as Saelzler to affirmatively relieve the plaintiff ofproducing any evidence on the question of causation. Moreover, the limitedliberalization of the plaintiff’s proof on causation that these few cases allowis contrary to established legal principles and policy considerations, for thereasons discussed infra.
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(N.Y.App.Div. 1994) 618 N.Y.S.2d 825 [summary judgment for defendant
proper because “[o]ther than mere speculation in the affidavit of the plaintiffs’
‘security expert,’ there [was] no indication in the record that the absence of a
functioning intercom was a ‘substantial causative factor in the sequence of
events’ that led to the assailant’s presence in the lobby of the building”];
accord Fallon v. Metroplitan Life Insurance Co., supra, 518 S.E.2d at p. 171;
Post Properties, Inc. v. Doe, supra, 495 S.E.2d at pp. 577-578; Vittengl v. Fox,
supra, 967 S.W.2d at pp. 278-282.)
In contrast to these cases, Saelzler permits a plaintiff to meet the burden
of establishing causation based on nothing more than an expert’s opinion, not
tied to any specific facts, that additional security would have prevented the
crime. This is not surprising, because Saelzler also stands for the even more
novel proposition that a plaintiff can establish causation by demonstrating
nothing more than “abstract negligence,” based on the vague “common sense”
notion that security generally reduces the probability that crime will occur.3/
II.
SAELZLER’S APPROACH TO PROVING CAUSATION
VIOLATES ESTABLISHED LEGAL PRINCIPLES AND
POLICY CONSIDERATIONS
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A. The “Common Sense” Premise that Security Generally
Reduces Crime Is Insufficient, by Itself, to Satisfy a
Plaintiff’s Burden of Proof on the Issue of Causation
According to Saelzler, “common sense tells judges as well as jurors
security measures – whether they be gates or lights or guards or more
sophisticated approaches – . . . reduce the probability crime will occur at
locations enjoying these protections. Thus, . . . the absence of these measures
is a contributing cause of most crimes that occur on those premises.” (Saelzler
v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1011 [emphasis added].)
Based on this premise, Saelzler holds that whenever a plaintiff establishes
inadequate security was provided at a given location, the necessary causal link
to the crime that occurred is presumed. (Id. at pp. 1011-1014.)
Given what little is known about the workings of the criminal mind, it
is possible to quarrel, in the first instance, with Saelzler’s premise that security
precautions are effective in deterring crime. (See Opening Brief on the Merits,
at pp. 37-39.) But it is not necessary to do so in order to perceive the flaw in
Saelzler’s analysis, and to understand why other cases have not adopted its
rationale. For even if it is true that security measures generally reduce the
probability crime will occur, this premise is insufficient, by itself, to satisfy a
plaintiff’s burden to establish causation to the degree of certainty required by
elemental principles of tort law.
In any negligence action, including premises liability actions arising
from third-party crime, the plaintiff bears the burden to demonstrate the causal
link between the defendant’s negligence and the plaintiff’s injury is more
likely than not. (Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269.)
“[P]laintiffs cannot recover where there is only a mere possibility the
defendant’s negligence caused the wrong.” (Simmons v. West Covina Medical
A18
Clinic (1989) 212 Cal.App.3d 696, 702, emphasis added; see also Jones v.
Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-402.) There
must be “‘a reasonably probable causal connection’” between the defendant’s
conduct and the plaintiff’s injury or, in other words, a greater than 50-50
possibility that the defendant’s act or omission substantially contributed to the
harm. (Simmons v. West Covina Medical Clinic, supra, 212 Cal.App.3d at pp.
702-703; see also Prosser & Keeton, supra, § 41 at p. 269 [“A mere possibility
of such causation is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly balanced, it
becomes the duty of the court to direct a verdict for the defendant,” emphasis
added, footnotes omitted]; Williams v. Wraxall (1995) 33 Cal.App.4th 120,
133.)
Common sense sometimes indicates a defendant’s negligent act or
omission more likely than not substantiallycontributed to the plaintiff’s injury.
When it does, the plaintiff may satisfy the burden to establish causation based
on that fact alone. (See Prosser & Keeton, supra, § 41 at p. 270 [explaining
that “ordinary experience” and “common knowledge” may provide the basis
for showing causation].) But if common sense only suggests the defendant’s
negligence increased by some unknown degree the likelihood that the plaintiff
would be injured, something more in the way of proof is required to establish
causation.
So, for example, common sense tells us that properly operating seat
belts reduce the likelihood of serious injury resulting from automobile
accidents. But this does not mean that, in every case where a defectively
designed seat belt ruptures during impact, the seat belt manufacturer is
responsible for the plaintiff’s injuries, or even for enhancement of the
plaintiff’s injuries. Rather, the plaintiff bears the burden of establishing, based
on the specific facts of the case, that he would not have sustained the degree
A19
of injury that occurred if the seat belt had operated properly. (See Endicott v.
Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 927.)
Similarly, common experience also tells us early detection of cancer
increases the likelihood of survival. Yet, a doctor who negligently fails to
diagnose cancer in a patient is not necessarily responsible for the patient’s
subsequent, cancer-related death. The plaintiff still bears the burden to show
that, absent the doctor’s negligence, this particular patient probably would
have beaten the disease and lived. (See Bromme v. Pavitt (1992) 5
Cal.App.4th 1487, 1499; Dumas v. Cooney (1991) 235 Cal.App.3d 1593,
1603.)
When the subject is deterrence of crime, common sense only goes so
far. “‘No one really knows why people commit crime’” and, therefore, no one
knows how effectively security measures prevent it. (Ann M. v. Pacific Plaza
Shopping Center, supra, 6 Cal.4th at p. 679, quoting 7735 Hollywood Blvd.
Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905.) Common sense
may arguably suggest that added security measures reduce crime to some
extent. But it is impossible to conclude, based on common sense alone and
without reliance on any concrete facts, that a particular security precaution
more likely than not would have prevented a particular crime, i.e., would have
reduced the chance of the crime occurring by more than 50 percent. Yet that
is precisely what a plaintiff must show to satisfy the burden of proving “a
reasonably probable causal connection” between the absence of additional
security precautions and the actual crime that occurred. (See Simmons v. West
Covina Medical Clinic, supra, 212 Cal.App.3d at pp. 702-703 [“A less than
50-50 possibility that defendants’ omission caused the harm does not meet the
requisite reasonable medical probability test of proximate cause”]; accord
Williams v. Wraxall, supra, 33 Cal.App.4th at p. 133.) To satisfy the burden
to prove causation, the plaintiff therefore cannot rely solely on common sense;
4/ For example, fingerprint analysis might create a reasonable basis toconclude the perpetrator of the crime entered the property through a brokendoor (see Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th at p. 488, fn.8 ), or other evidence might show the broken door was the only feasible meansof entry. (See Brewster v. Prince Apartments, Inc. (N.Y.App.Div. 1999) 695N.Y.S.2d 315, 318-319.) Or, there may be evidence the plaintiff’s proposedsecurity precautions deterred the assailant from committing crimes at otherlocations (See Dickinson Arms-Reo, L.P. v. Campbell (Tex.Ct.App.1999) 4S.W.3d 333, 349.) There are myriad other ways for plaintiffs to provecausation, depending on the facts of the particular case. (See Leslie G. v.Perry & Associates, supra, 43 Cal.App.4th at p. 488, fn. 8; see also Roettgerv. United Hospitals of St. Paul, Inc. (Minn.Ct.App. 1986) 380 N.W.2d 856,861, 862 (assailant was openly present in hospital lounge area for extendedperiod, with liquor on his breath, pacing, smoking cigarettes, and disturbinghospital visitors, but was not ejected by hospital security); Walker v. St. PaulApartments, Inc. (Ga.Ct.App. 1997) 489 S.E.2d 317 (assailant entered throughunlocked door while security guard was away from post; defendants failed toprovide guard with key to lock door despite repeated requests); Mayer v.Housing Authority (N.J.Super.Ct.App.Div. 1964) 202 A.2d 439 (althoughidentity of person who threw stone that injured plaintiff was unknown,evidence showed defendant had knowledge of stone-throwing by children inplayground area for 11 months prior to the incident, incident occurred duringtime when children would be expected to make use of playground, and guards(who were not on duty at the time of the incident) previously stopped childrenfrom “fooling around” there); Lincoln Property Co. v. DeShazo (Tex.Ct.App.1999) 4 S.W.3d 55 (evidence showed one security guard could not single-handedly control size of crowd that regularly gathered in defendant’s parkinglot on “college nights”); Virginia D. v. Madesco Investment Corp. (Mo. 1983)648 S.W.2d 881 (security guard or television monitor in empty lower lobbyarea of hotel would have substantially increased probability that male assailantwould have been noticed as he entered ladies’ room).
A20
rather, the plaintiff must present case-specific facts demonstrating a causal
connection between the absent security measure and a particular crime.4/
Saelzler wrongly assumes that because security arguably deters some
crime, inadequate security substantially contributes to the occurrence of most
crime. (See Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1011,
1014.) In doing so, Saelzler effectively adopts a relaxed standard of causation
that permits plaintiffs to prevail in premises liability actions when causation
A21
is merely possible. This result directly contradicts established tort principles
and should not be sanctioned by this Court.
B. An Expert’s Unsupported Hindsight Opinion About the
Deterrent Effect of Recommended Security Measures
Cannot Create a Triable Issue of Fact on Causation
Although the Saelzler majority found “common sense” sufficient to
create a triable issue of fact on causation, in an alternative holding the majority
also found the testimony of plaintiff’s security expert “admissible and
credible” on the issue. (Saelzler v. Advanced Group 400, supra, 77
Cal.App.4th at p. 1016.) Plaintiff’s expert testified, without any factual
support, “that this attack, assault and battery, and attempted rape on the
plaintiff would not have occurred had there been daytime security and a more
concerted effort to keep the gates repaired and closed. . . . It is my opinion that
the premises were a haven for gangsters and hoodlums which further
encouraged criminal activity as evidence [sic] by the long history of criminal
activity in the only one year prior to this incident.” (Id. at pp. 1005-1006.) In
sanctioning this testimonybyplaintiff’s expert, the Saelzler majorityneglected
to so much as mention the long line of authority from this and other
jurisdictions finding similar, conclusory testimony entirely speculative and
therefore inadequate to prove causation. (See section I, at pp. 5-11, ante.)
It is settled law that an expert’s opinion must be based on established
facts; “[w]here an expert bases his conclusion upon . . . factors which are
speculative, remote or conjectural, . . . the expert’s opinion cannot rise to the
dignity of substantial evidence.” (Pacific Gas & Electric Co. v. Zuckerman
(1987) 189 Cal.App.3d 1113, 1135.) Saelzler’s holding flies in the face of this
fundamental legal principle. It creates a dangerous precedent permitting
A22
plaintiffs to prevail in premises liability cases based on unsupported, hindsight
opinions of partisan “security experts” who opine without any factual basis
that whatever security measures the defendant did not have in place would
have prevented the particular crime that occurred. This type of inherently
speculative and unreliable testimony cannot be accorded the status of actual
evidence adequate to create a triable issue on causation.
C. There Is No Legitimate Basis For Shifting to Defendant
Landowners the Burden to Disprove Causation
Saelzler holds that a plaintiff in a premises liability action based on a
third-party’s crime need not produce evidence to prove the connection between
the defendant’s conduct and the plaintiff’s injury is “more likely than not.”
Under Saelzler, once the plaintiff establishes inadequate securitywas provided
(in other words, duty and breach), the burden shifts to the defendant to
disprove the element of causation – that is, the defendant must prove the
particular crime perpetrated against the plaintiff would have happened even if
proper security measures, as defined by plaintiff’s expert, were in place.
(Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1014.)
In negligence actions, the plaintiff typically bears the burden to prove
causation. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968;
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415;
Prosser & Keeton, supra, § 41 at p. 269; Rest.2d Torts, §433B.) Under very
limited circumstances, for public policy reasons, the burden on the issue of
causation may be shifted to the defendant. (Prosser & Keeton, supra, § 41 at
pp. 270-271; Rest.2d Torts §433B.) However, shifting the burden of proof on
causation constitutes a “fundamental departure” from general tort principles,
and can only be justified under particular, unusual and recognized
5/ The classic example of this “alternative liability” situation is the caseof Summers v. Tice (1948) 33 Cal.2d 80. (See Sindell v. Abbott Laboratories(1980) 26 Cal.3d 588, 598; Lineaweaver v. Plant Insulation Co., supra, 31Cal.App.4th at p. 1417.) There, the plaintiff was injured by a single shot whilehunting with two companions who each negligently fired their shotguns in hisdirection at about the same time. (Summers v. Tice, supra, 33 Cal.2d at pp. 82-83.) One of the defendants was clearly the cause of the plaintiff’s injury, butit was impossible for the plaintiff to prove which one.
A23
circumstances. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p.
969.) Premises liability actions based on third-party crime do not fall under
any category of cases where burden-shifting on the causation question has
been allowed.
For example, a shift in the burden of proof is proper “[w]here the
conduct of two or more actors is tortious, and it is proved that harm has been
caused to the plaintiff by only one of them, but there is uncertainty as to which
one has caused it.”5/ (Rest.2d Torts, §433B, emphasis added; See also Prosser
& Keeton, supra, § 41 at p. 271; Sindell v. Abbott Laboratories, supra, 26
Cal.3d at p. 598; Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp.
970-71.) This “alternative liability” situation justifies deviation from the usual
allocation of the burden of proof because of “the injustice of permitting proved
wrongdoers, who among them have inflicted injury upon the entirely innocent
plaintiff, to escape liability merely because the nature of their conduct and the
resulting harm has made it difficult or impossible to prove which of them has
caused the harm.” (Rest.2d Torts, §433B, com. f, p. 446.) This “alternative
liability” principle has no application to actions involving premises liability for
third-party crime, where the plaintiff necessarily claims both the criminal and
the property owner are responsible, but in different ways, for the plaintiff’s
injury.
Another principle permitting a shift in the burden of proof on causation,
and the only one on which plaintiff here relies (see Answer Brief on the Merits
A24
at pp. 36-37), was first enunciated in the celebrated case of Haft v. Lone Palm
Hotel (1970) 3 Cal.3d 756. In Haft, a father and son drowned in a motel pool
where, in violation of law, no lifeguard was provided. There were no
witnesses, so it was impossible for the plaintiff to adduce definitive evidence
on the manner in which the drownings occurred, or to establish whether a
lifeguard could have prevented them. Nonetheless, the “chances of a
successful rescue [were] very high.” (Id. at p. 772, fn. 18.) The motel pool
was very small, and the decedents were the only two persons in the entire pool
area when the drownings occurred, so “a reasonably attentive lifeguard would
without doubt have been aware of their activities at the moment that the . . .
emergency arose.” (Ibid.) Recognizing the motel’s conduct created the
“evidentiary void” on the issue of causation (because a lifeguard, if he did not
rescue the decedents, at least would have witnessed the accident), the Haft
court shifted the burden of proof to the defendant to prove a lifeguard would
not have averted the tragedy. (Id. at pp. 771, 773.) The court explained:
[T]he shift of the burden of proof . . . may be said to rest on apolicy judgment that when there is a substantial probability thata defendant’s negligence was a cause of an accident, and whenthe defendant’s negligence makes it impossible, as a practicalmatter, for plaintiff to prove “proximate causation”conclusively, it is more appropriate to hold the defendant liablethan to deny an innocent plaintiff recovery, unless the defendantcan prove that his negligence was not a cause of the injury.
(Id. at p. 774, fn. 19, emphasis added, final emphasis in original.)
The Haft doctrine is not generally applicable to premises liability
actions based on third-party crime. In fact, Haft does not apply under the facts
of Saelzler itself.
Under Haft, a plaintiff must establish a “prima facie” case or
“substantial probability” of causation as a condition precedent to a shift in the
burden of proof. (Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1719;
A25
Williams v. Wraxall, supra, 33 Cal.App.4th at p. 137; see also Endicott v.
Nissan Motor Corp., supra, 73 Cal.App.3d at pp. 927-928 [refusing to apply
Haft because it was “pure speculation to assume that differently designed seat
belts would have prevented plaintiff’s injuries”]; Simmons v. West Covina
Medical Center, supra, 212 Cal.App.3d at p. 703 [finding Haft inapplicable
because the evidence did not establish a “reasonable degree of medical
probability” plaintiff would have obtained a different result absent defendant’s
medical negligence]; Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d
1, 6 [distinguishing Haft where it was “fully as logical that the [drowning]
deaths were caused by the [decedents’] mere inability to swim as by the fact
that the [statutorily required safety rope] was missing [from the pool]”]; Jones
v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 405 [explaining
the Haft rationale “is in reality merely an extension of the doctrine of res ipsa
loquitur”].)
The plaintiff in Saelzler did not make this threshold showing. There
was no evidence, much less a substantial probability, that gates with working
locks would have kept the perpetrators out of the defendants’ apartment
complex and thereby prevented the attack, for it was just as likely the
perpetrators were residents of the complex, or guests of residents, as intruders.
(Saelzler v. Advanced Group 400, supra, 77 Cal.App.4th at p. 1016 (dis. opn.
of Neal, J.).) Similarly, there was no evidence addition of daytime security
guards would have prevented the attack. (Id. at p. 1016 (dis. opn. of Neal, J.).)
“A 300-unit, 28-building apartment complex contains many rooms, halls,
entries, garages, and other spaces where a rape could take place despite
extensive security patrols.” (Id. (dis. opn. of Neal, J.) .) Indeed, the evidence
showed the defendants did provide night-time security patrols on the property,
but crime continued to occur despite this precaution. (Ibid. (dis. opn. of Neal,
J.).) And, while locked gates and additional security patrols might have
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lessened by some unknown extent the general probability of criminal activity
on the property, there was no evidence these precautions would have decreased
crime by more than 50 percent, so as to render the necessary causal link to the
attack on the plaintiff more likely than not. (Ibid. (dis. opn. of Neal, J.).)
Moreover, the Haft rule applies only when the defendant’s negligence
creates an “evidentiary void” on the issue of causation and makes proof of
causation impossible for the plaintiff as a practical matter, or when the
defendant has greater access to evidence pertaining to causation because the
instrumentality that caused the injury is within his control. (Haft v. Lone Palm
Hotel, supra, 3 Cal.3d at pp. 771-73; Jones v. Ortho Pharmaceutical Corp.,
supra, 163 Cal.App.3d at p. 405; Endicott v. Nissan Motor Corp., supra, 73
Cal.App.3d at p. 928; Williams v. Wraxall, supra, 33 Cal.App.4th at p. 136;
Smith v. Americania Motor Lodge, supra, 39 Cal.App.3d at pp. 6-7; Thomas
v. Lusk, supra, 27 Cal.App.4th at p. 1720.)
In Saelzler, the defendants obviously did not control the instrumentality
that caused the plaintiff’s injury – the unknown assailants – nor did the
defendants have any better access than the plaintiff to information concerning
the identities of the assailants, how they came upon the property, or what might
have deterred then from committing the crime. Moreover, the “evidentiary
void” on the issue of causation was not caused by the defendants’ failure to
provide adequate security. Unlike the absence of a lifeguard in Haft, the
absence of working locks on the apartment complex’s perimeter gates did not
make it more difficult for the plaintiff to prove her case. Nor did the failure
to provide more security patrols impede the plaintiff’s case, since it was pure
speculation whether a security guard patrolling the 28-building, 300-unit
apartment complex would have happened to witness the attack.
Finally, proof of causation was not “impossible.” For example, instead
of relying on a conclusory “expert” opinion based on nothing more than the
6/ Other premises liability cases demonstrate there are myriad additionalways for plaintiffs to establish causation based on specific evidentiary facts.(See, e.g., cases discussed at p. 15, fn. 4, ante. See also Center ManagementCorp. v. Bowman (Ind.Ct.App. 1988) 526 N.E.2d 228, 230-231.)
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general proposition that increased security would have made the property
safer, the plaintiff might have presented expert testimony based on a statistical
comparison of the crime rate at the defendants’ apartment complex with the
crime rates at other complexes of similar size, in comparable neighborhoods,
that have in place the type and level of security plaintiff claimed the
defendants should have provided. If the statistics showed the properly secured
location experienced over 50 percent fewer crimes than the defendants’
apartment complex, that would have been sufficient to get the case to a jury.6/
Undoubtedly, proving causation under the facts of Saelzler would have
been difficult, and it likely is not easy to prove causation in some other
premises liability actions based on third-party crime. But that is simply a
function of the tenuous connection between added security measures and
crime, and it does not justify shifting the burden of proof on the causation
question to the defendant. Indeed, when a plaintiff seeks to recover from a
defendant for injuries suffered at the hands of another person over whom the
defendant had no control, it is appropriate that proof of causation be difficult.
(See Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at p. 1418
[“We recognize that plaintiffs sometimes have difficulty in proving causation
. . . and are not insensitive to their claims that it would be unfair to deny them
a remedy for the wrong inflicted upon them. But . . . it serves no justice to
fashion rules which . . . demand[] [defendants] to compensate a loss they did
not create”].) Moreover, “[t]he fact that a determination of causation is
difficult to establish cannot . . . provide a plaintiff with an excuse to dispense
with the introduction of some reasonably reliable evidence proving this
essential element of his case.” (Jones v. Ortho Pharmaceutical, Corp., supra,
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163 Cal.App.3d at p. 403.) “Difficult” is not the same is “impossible,” and
Haft only permits a shift in the burden when causation is impossible for the
plaintiff to prove because of some action or inaction on the part of the
defendant.
This Court has stated that, “in the absence of a compelling need for
shifting the burden [of proof on the issue of causation], it should remain with
the plaintiff.” (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 977.)
The Saelzler majority ignored this pronouncement when it placed on defendant
property owners the burden to disprove causation, despite the absence of any
legal authority supporting a burden shift in the premises liability context.
Reversal of Saelzler is necessary to correct the majority’s error.
D. Public Policy Demands that Plaintiffs in Premises Liability
Actions Based on Third-Party Crime Affirmatively
Demonstrate Causation.
Today, there is no question that landowners in California have a duty
“to take reasonable steps to secure common areas against foreseeable criminal
acts of third parties that are likely to occur in the absence of such precautionary
measures.” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p.
674.) It also is unquestionable, however, that “in this day of an inordinate
volume of criminal activity, . . . [a]nyone can foresee that a crime may be
committed anywhere at any time.” (7735 Hollywood Blvd. Venture v.
Superior Court, supra, 116 Cal.App.3d at pp. 905-906; see also Ann M. v.
Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678 [“Unfortunately,
random, violent crime is endemic in today’s society. It is difficult, if not
impossible, to envision any locale open to the public where the occurrence of